The State ex rel. Walker v. Mullins

• Decision Date: 18 June 1895
• Citation: 31 S.W. 744,129 Mo. 231
• Parties: The State ex rel. Walker, Attorney General, v. Mullins
• Court: Missouri Supreme Court

31 S.W. 744

129 Mo. 231

The State ex rel. Walker, Attorney General, v. Mullins

Supreme Court of Missouri

June 18, 1895

Proceeding to Disbar.

Denied.

R. F Walker, Attorney General, and Morton Jourdan, Assistant Attorney General for relator.

(1) The summary jurisdiction of courts over attorneys exists by reason of the necessary and inherent power vested in them to control the conduct of their own officers and to maintain their own dignity and respectability. Weeks on Attys., sec 380; Ex parte Brounsall, 2 Cowper, 445; 1 Am. and Eng. Encyclopedia of Law, p. 944; Ex parte Wall, 107 U.S. 265; State v. Kirke, 12 Fla. 278; Ex parte Burr, 2 Cranch C. C. 379; Baker v. Com., 10 Bush (Ky.), 592; Anderson v. Dunn, 6 Wheat. 204; State ex rel. v. Winton, 5 P. (Ore.) 337; In re Henderson, 88 Tenn. 531; People v. Goodrich, 79 Ill. 148; Scott v. State, 86 Tex. 321; Davis v. State, 92 Tenn. 634. (2) The supreme court, having power by express statute to grant licenses to practice law, has the right to see that such licenses are not abused, and that those who receive them do not demean themselves in such a way as to bring discredit on themselves and the courts. People ex rel. v. Goodrich, 79 Ill. 148; Penobscot Bar v. Kimball, 64 Me. 140; Ex parte Secombe, 19 How. U.S. 13. The statute is not to be construed as restrictive of the general powers of the court. In re Mills, 1 Mich. 392, in which we find numerous cases discussed; State ex rel. v. Chapman, 11 Ohio 430. (3) A proceeding to disbar an attorney may be commenced by members of the bar on their own motion. Fairchild Co. Bar ex rel. v. Taylor, 13 L. R. A. 767, and notes. Or by an officer of the court in the name of the people of the state. People v. Turner, 1 Cal. 143; Baker v. Com., 10 Bush, 592; Turner v. Comm., 2 Met. 619; Peyton's Appeal, 12 Kan. 398; People v. MacCabe, 19 L. R. A. 231; Davis v. State, 92 Tenn. 634. An attorney may be disbarred for any matter or thing, whether sufficient to constitute a criminal offense or to create a civil liability or not, if it is shown that he is an unfit person to be permitted to practice in the courts. Ex Parte Cole, 1 McCrary, 405; People, etc., v. Beattie, 137 Ill. 553; Baker v. State, 15 S.E. 788; In re Serfass, 8 Cent. Rep. 850; In re Blank, 1 Cent. Rep. (Pa.). 910; In re Henderson, 88 Tenn. 531; State v. Burr, 19 Neb. 594; In re Peterson, 3 Paige Ch. Rep. 510; Ex parte Brown, 1 How. (Miss.) 303; In re Nathby, 14 Cent. L. J. 90; Baker v. Com., 10 Bush (Ky.), 592. It is held by the supreme court of Iowa, in the absence of any express statutory authority, that the district court, in the exercise of its inherent power, may require a member of the bar to prosecute charges against a practicing attorney, looking to his disbarment. Byington v. Moore, 70 Iowa 206; see, also, State, etc., v. Laughlin, 73 Mo. 443.

J. P. Butler and C. B. Crawley for respondent.

Burgess, J. Barclay, J., concurs in the result. Gantt and Sherwood, JJ., and Brace, C. J., dissent. Macfarlane, J. concurring. Gantt, J. dissenting. Brace, C. J., and Sherwood, J., concur in my views.

OPINION

In Banc.

Burgess J.

This is an original proceeding begun in this court, at the relation of the attorney general, for the purpose of having the respondent, a member of this bar and officer of this court, suspended from the practice of the law in this state, and his name stricken from the roll of attorneys because of alleged deceit, malpractice and professional misconduct, as such attorney and officer. The charges and specifications are as follows:

"That heretofore, to wit, at the August adjourned term (October, 1891), of the circuit court of Grundy county, Missouri, one Joseph A. Howell was tried and convicted of murder in the first degree; that said A. W. Mullins was then and is now engaged in the practice of law in this state, and as such appeared in said circuit court of Grundy county in behalf of said Joseph A. Howell; that an appeal from the judgment of the trial court was applied for by said Joseph A. Howell and granted to the supreme court of this state; that upon the trial of said cause the following named witnesses, Jas. Hall, R. N. Vorce, D. C. Orr and James C. Moore, whose testimony was competent and material, testified upon said trial in behalf of the state and Joseph A. Howell, the defendant, testified in his own behalf; that the said James Hall and R. N. Vorce testified that they identified the body of the child Nettie Hall, charged in the indictment to have been murdered by the defendant, Joseph A. Howell; that D. C. Orr and James C. Moore testified that the defendant, Joseph A. Howell, in conversation had with him while confined with him in jail at Linneus, Missouri, admitted or confessed his guilt of the murder of said Nettie Hall, with which he was charged.

"That the defendant, Joseph A. Howell, in his testimony, made frequent mention of, and reference to, the deceased, Nettie Hall; that said Howell was not cross-examined by the counsel for the state about matters to which he had not testified in chief; that stenographic notes of the testimony of each of said witnesses were taken during said trial, and by the court stenographer correctly transcribed and incorporated into duplicate copies of the transcript of the evidence taken in said cause; that said transcripts, when incorporated into the bill of exceptions in said cause filed in the office of the clerk of the circuit court of said Grundy county, and the copy of the same forwarded by said clerk to the clerk of the supreme court, were changed, mutilated, spoliated and interpolated so as to remove all evidence of the corpus delicti from the testimony of said James Hall and R. N. Vorce; and all evidence from the testimony of said D. C. Orr and James C. Moore as to the confession made by the defendant, Joseph A. Howell, to them; and all evidence from the testimony of the defendant, Joseph A. Howell, naming, mentioning or referring to the deceased Nettie Hall, and falsely interpolating in said testimony and cross-examination of the defendant by the counsel for the state matters not testified to in defendant's examination in chief; that said A. W. Mullins, well knowing that the witnesses named had testified as before stated, and that the transcript of their testimony in the bill of exceptions had been changed, falsified, spoliated and interpolated as aforesaid, falsely, fraudulently, and for the purpose of deceiving the supreme court, and thereby securing a reversal of the judgment in this cause, prepared and caused to be filed in the office of the clerk of the supreme court an abstract of the evidence, brief and argument, in which the testimony of the witnesses before named was changed, mutilated, spoliated and interpolated as above particularly set forth.

"That said A. W. Mullins, after having caused said false abstract of the evidence, brief and argument in said cause to be filed in the office of the supreme court, appeared before said court at the April term, 1893, and in an oral argument made in the case of the said Joseph A. Howell, for the purpose of misleading and deceiving said supreme court, and thereby securing a reversal of the judgment of the trial court, contended and insisted that the printed copies of the evidence, the brief and the argument filed by him in said cause truly and correctly presented the facts in said case, and that no evidence had been adduced upon said trial proving or tending to prove the corpus delicti, and that the defendant had been improperly cross-examined, when in truth and in fact the corpus delicti had been proved and defendant had not been improperly cross-examined."

The evidence shows that respondent must have known at the time of the trial and conviction of Joseph A. Howell, at the August adjourned term, 1891, of the circuit court of Grundy county, for killing and murdering Nettie Hall, and the argument by him before the jury, and of the motion for new trial after conviction, that the corpus delicti had been proven, but it does not show that he had anything to do with the preparation of the bill of exceptions, preparatory to bringing the case before this court.

He resided some thirty miles distant from Trenton, where the trial was had; and not until the stenographer had made two typewritten copies of her notes of the evidence, had sent them to Messrs. Harber & Knight, and one copy was sent by them to him at Linneus on or about the twentieth of April, 1892, for his examination, did he have an opportunity of examining the same, and then not thoroughly because of sickness. He returned the copy sent to him to Harber & Knight about the twentieth of April, 1892. The bill of exceptions was prepared by Knight, and the abstract, statement and printed argument for this court by Messrs. Harber & Knight. The only evidence which tended to show that respondent knew that the bill of exceptions, which had been prepared and signed by Judge Goodman, before whom the case was tried, did not contain a correct report of the evidence at the trial, until his arrival here for the purpose of arguing it before this court, was at the May term, 1892, of the circuit court of Sullivan county, when Harber stated to him that Knight had said "that they would never be able to show the death of Nettie Hall from the bill of exceptions." Of this he was again assured by Harber in this city, before making his argument before this court, in which he contended that the record failed to show the corpus delicti.

While an attorney at law is an officer of the court in which he practices his profession, he is not the holder of an office of public trust, and such court has an inherent power and control over him, and may for good cause -- that is, for professional misconduct -- suspend him from the practice or...